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eBook details

• Title: Mackey v. Burke
• Author : New Mexico Court of Appeals
• Release Date : January 22, 1984
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 54 KB

Description

On September 16, 1982, plaintiffs "[I]ndividually and as the Natural Parents of Clara Mae Mackey, Deceased," filed this action for compensatory and punitive damages based on the alleged "Medical and Hospital Malpractice, Negligence, and Outrageous Conduct" concerning treatment of their infant daughter prior to her death on October 16, 1979. An amended complaint, filed October 8, 1982, characterized plaintiffs in the same way as the complaint filed September 16, 1982. Thus, the first amended complaint contributed nothing to the issues to be decided. On February 23, 1983, plaintiff filed a second amended complaint which added as a party plaintiff, "Mr. Ross Lee Mackey, Jr., as the Personal Representative of his daughter Clara Mae Mackey, Deceased." He had been appointed sometime after December 20, 1982, and before January 4, 1983. After a hearing on defendants motion to dismiss, the court entered summary judgment for defendants because plaintiffs second amended complaint did not relate back to earlier defective complaints and was thus barred by the three-year limitations period for medical malpractice and wrongful death actions. Plaintiffs appeal concerns two issues: 1) What is the legal effect of a medical malpractice/wrongful death action, based on an infants death, being brought by the parents of the deceased infant as individuals in their capacity as natural parents? 2) If it is improper for parents to bring such action individually, can an amendment after the expiration of the statute of limitations adding the father as personal representative relate back and save the action from dismissal?

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